Citation Nr: 1806230
Decision Date: 01/31/18 Archive Date: 02/07/18
DOCKET NO. 11-29 482 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to an initial rating in excess of 70 percent for service-connected major depressive disorder.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
3. Entitlement to service connection for a bilateral knee condition.
4. Entitlement to service connection for a cervical spine condition.
5. Entitlement to service connection for a bilateral shoulder condition.
6. Entitlement to service connection for anxiety.
7. Entitlement to service connection for right wrist carpal tunnel syndrome.
8. Entitlement to a rating in excess of 10 percent for recurrent tinnitus.
9. Entitlement to a rating in excess of 30 percent for migraine headaches.
10. Entitlement to a rating in excess of 20 percent for left wrist carpal tunnel syndrome.
11. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the left wrist.
REPRESENTATION
Veteran represented by: Robert V. Chisholm, Attorney
ATTORNEY FOR THE BOARD
I. Umo, Associate Counsel
INTRODUCTION
The Veteran served active duty in the U.S. Army from January 1978 to June 1988.
This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009, September 2015, and June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The March 2009 rating decision assigned a 30 percent rating for major depressive disorder. The Veteran requested an initial rating increase in an October 2009 statement in support. In an October 2011 rating decision, the RO assigned an increase to 50 percent for the disability, effective from October 22, 2009. This action did not resolve the appeal. The Veteran filed his substantive appeal in November 2011.
In the September 2015 rating decision, the RO denied the Veteran's claims of entitlement to service connection for bilateral knee condition, cervical spine condition, and bilateral shoulder condition. The Veteran filed his notice of disagreement in April 2016 and requested the decision review officer (DRO) to review his appeal.
In the June 2016 rating decision, the RO denied the Veteran's claims of entitlement to service connection for anxiety and right wrist carpal tunnel syndrome, and denied increase rating claims for tinnitus rated at 10 percent, migraine headaches rated at 30 percent, left wrist carpal tunnel syndrome rated at 20 percent, and postoperative status, fracture of left wrist rated at 10 percent. The Veteran filed his notice of disagreement in July 2016 and requested the DRO to review his appeal.
In the September 2016 notice of disagreement, the Veteran requested to withdraw all the issues currently on appeal. Normally, as this request was in writing prior to the Board's promulgation of a decision, the issues would be withdrawn as requested. See 38 C.F.R. § 20.204 (2017). However, the Veteran also requested that all the appeals withdrawn be reconsidered by a decision review officer (DRO). Therefore, the Board accepts the Veteran's request to have all the issues currently on appeal reviewed by the DRO.
The Board notes that in a September 29, 2016 correspondence, the Veteran's representative informed the RO that his office no longer has power of attorney for the Veteran. However, the attorney is still listed as the Veteran's representative because the Veteran and attorney still have a valid withholding fee agreement. Therefore, any retroactive benefits paid to the Veteran is subject to that agreement and the attorney should be kept informed of the Veteran's appeals.
This case was previously before the Board in October 2014, where the issue of entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder was granted to 70 percent. However, the issues of entitlement to an initial rating in excess of 70 percent and total disability rating due to individual unemployability (TDIU) were remanded for further evidentiary development.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).
Manlincon
As discussed above, in the September 2015 and June 2016 notice of disagreement, the Veteran requested the DRO process in lieu of the traditional appeals process. To date, there has been no indication of a decision by the DRO or any correspondence to the Veteran providing an update to his pending appeal for the issues listed above. As the issues have not been resolved through the DRO process and no statement of the case (SOC) has been issued, a remand for issuance of an SOC and under Manlincon is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). Likewise, the previously remanded issues of entitlement to a rating in excess of 70 percent for major depressive disorder and entitlement to a TDIU require the issuance of an SSOC. After the SOC was issued for this case, a large amount of pertinent evidence has been added to the claims file. The RO must address this evidence and issue an supplemental statement of the case prior to the Board's adjudication of this claim.
Further, the Board notes that the outcome of the Veteran's TDIU claim might be impacted by the outcome of the service connection and increase rating claims that have been remanded to the AOJ. Thus, adjudication of the TDIU claim should be deferred pending completion of any development or adjudication of the remanded claims for service connection and increase ratings. Harris v Derwinski, 1 Vet App 180 (1991).
Accordingly, the case is REMANDED for the following action:
1. Issue the Veteran an SSOC on the issues numbered one and two (1 & 2) on the title page. Afford the Veteran the requisite opportunity to respond before the record is returned to the Board for further appellate action.
2. Issue the Veteran an SOC on the issues numbered three through eleven (3-11) on the title page. Only if the Veteran perfects an appeal by submitting a timely and adequate substantive appeal on an issue, should the issue be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).